COURT OF APPEAL FOR ONTARIO
DOHERTY, FELDMAN and LAFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Patrick McCann and
Gregory Lafontaine
Respondent
for the appellant Alexander
- and -
Joseph Di Luca
for the appellant Blake
HARRY ALEXANDER and NORRIS BLAKE
Appellants
Roger A. Pinnock
for the respondent
Heard: June 29, 2005
On appeal from the convictions entered by Justice G. Valin of the Superior Court of Justice, sitting without a jury, on July 3, 2003 and from the sentence imposed on September 30, 2003.*
DOHERTY J.A.:
I
Overview
1The appellants, Alexander and Blake, were tried by a judge of the Superior Court of Justice, sitting without a jury, on a sixteen-count indictment. They were jointly charged on counts one to three, Blake was charged alone on counts four to six and Alexander was charged alone on counts seven to sixteen.
2Alexander was convicted on four charges:
- conspiring with Blake to extort P.G. (count three);
- unlawfully possessing an electromagnetic device knowing that its design rendered it primarily useful for surreptitious interception of private communications (count eleven);
- extorting M.M. (count twelve); and
- conspiring with an unindicted co-conspirator to extort P.M. (count fifteen).
3Blake was convicted on two counts:
- conspiring with Alexander to extort P.G. (count three); and
- conspiring with various unindicted co-conspirators, including Alexander, to extort M.C. (count five).
4Alexander received sentences totalling thirty months. Blake received sentences totalling eight months.
5Alexander appeals his convictions and sentence. Blake initially appealed his convictions and sentence, but has abandoned his sentence appeal.
6In my view, the conspiracy convictions cannot stand. I would allow Alexander’s appeal from his convictions on counts three and fifteen, quash those convictions and enter acquittals on those counts. I would dismiss Alexander’s appeal from his remaining two convictions and affirm the sentences totalling ten months imposed by the trial judge on those convictions. I would allow Blake’s appeal from both conspiracy convictions, quash those convictions and enter acquittals on both counts.
II
(i) Factual Background
7Alexander had been involved in the sales and marketing business for many years. He became embroiled in several legal disputes with former business partners, lawyers, accountants and employees. In 1997, Alexander and a former policeman named Raymond Sabourin started a private investigation firm known as C.[…] Inc. (“C.”). The firm was to investigate various forms of white collar fraud.
8The Crown contended that Alexander used the facilities of C. to pursue investigations against individuals with whom he had ongoing litigation or personal disputes. The Crown alleged that Alexander hired female “operatives” to lure the subjects of these investigations to hotels or apartments that had been rigged with hidden audio and video recording equipment. The operatives were to attempt to seduce the targets of the investigations into compromising sexual positions that would be recorded by the equipment and later used by Alexander in attempts to extract money or other gain from the targets.
9A number of audio and video recordings were made. In at least one case, the target of these activities received photographs in the mail, which had been taken from the video recording, showing the target engaged in sexual activity. The photographs were accompanied by a note demanding payment of money to Alexander.
10Blake had done various jobs, including landscaping and carpentry for Mrs. Alexander over the years. Alexander hired Blake, at first to do handy work around the C. office. Later, with Alexander’s permission, Blake became involved in hiring the operatives. Blake had no involvement in Alexander’s other business dealings outside of C. or in the various disputes between Alexander and the targets of the surreptitious activity described above.
11The Crown’s case was based on the evidence of some of the individuals who were targets of the investigations and evidence from employees at C., including some of the female operatives.
12Alexander gave evidence. He testified that C. used female operatives in an effort to get admissions and other damaging information from individuals who were the targets of the C. investigations. Alexander testified that he was looking for professional con women who could play the role of innocent persons with a lot of money to spend. He thought that the targets would believe that they could bilk these individuals. Alexander acknowledged that some of the meetings between the operatives and the targets were audiotaped and/or videotaped. He denied that any of the operatives were instructed to engage in sexual activity. He said that he used pretty young women as operatives because male targets tended to let their guard down and become more talkative around pretty young women. Alexander testified that he intended to use any admissions or evidence of dishonest conduct to assist C. clients in their civil suits, or to pass that information on to Revenue Canada or the police.
13Blake did not testify.
(ii) The Conspiracy Allegations
14Four of the convictions involved conspiracy allegations. Although the counts in the indictment were not worded as clearly as they might have been, the thrust of the allegation in each count was basically the same. It was alleged that the conspirators conspired to extort money or other personal gain from named victims by videotaping the victims in compromising sexual positions and then threatening to make public photographs from the videotapes unless the targets paid the demanded sum to Alexander. A brief outline of the evidence relating to each of the conspiracy counts that gave rise to convictions follows.
(a) Count Three
15Count three alleged that Alexander and Blake conspired along with Sabourin to extort P.G. P.G. had been a long-time friend of Alexander and vice-president and general manager of Alexander’s marketing firm. He left the firm on bad terms in 1994 and Alexander sued him when he took a job with another company. By the time C. was in business in early 1998, Alexander’s lawsuit against P.G. was still outstanding.
16Alexander arranged for persons employed by C. to meet with P.G. posing as potential clients. Alexander advised these individuals that P.G. was a “serial embezzler” who had taken large amounts of money from several people. Alexander made it clear that his aim was to get P.G. into some form of compromising situation as soon as possible. At one meeting, two C. employees discussed a proposed business transaction with P.G. The meeting was videotaped. Alexander said that in subsequent meetings, P.G. had to be put in a more compromising position, specifically a sexually compromising position. Arrangements were made for a meeting with P.G. at the Chateau Laurier Hotel. Prior to the meeting, audio/video recording equipment was surreptitiously installed in the hotel room.
17Blake hired a woman (S.T.) who worked for an escort agency, to pose as one of the individuals meeting with P.G. at the Chateau Laurier. Blake told her that she would be paid $200.00 if she did not have sex with P.G. and $400.00 if she did. The woman went to the hotel room posing as a friend of the two C. employees who had previously met P.G. These two left, leaving P.G. alone with the woman. Unbeknownst to her, this meeting was being videotaped. The woman did not attempt to engage in sexual activity with P.G. After P.G. had left the hotel room, Blake returned, paid the woman $200.00 and drove her home. The next day, Blake told the woman that they had to go to see Alexander. Alexander told her that it had been reported to him that she was not appropriately dressed when she met P.G. the night before.
18Alexander testified that the day-to-day operations at C. were controlled by Sabourin and not by him. He denied any knowledge of a plan to try to place P.G. in a compromising sexual position so that it could be videotaped and used to extort money from P.G.. Alexander did admit that he wanted his operatives to induce P.G. to engage in some act of dishonesty or to admit that he had misused corporate information after he was fired by Alexander’s marketing company.
19There was no evidence that Blake knew P.G., knew of his prior relationship with Alexander, nor that Alexander was suing him.
(b) Count Five
20Count five alleged that Blake conspired with various unindicted co-conspirators, including Alexander, to commit extortion by videotaping M.C. in a compromising situation for personal gain.
21M.C., an accountant, had directed a client who was having problems with a former partner, to C.. M.C.’s client hired C. and agreed to provide a $10,000.00 retainer. Shortly afterwards, Sabourin purported to uncover information suggesting that M.C. was defrauding his client. C.’s relationship with M.C.’s client ended suddenly and she did not pay the $10,000.00 retainer. Alexander believed that M.C. had convinced his client to discontinue her relationship with C. and C. then sued M.C.. Alexander, through C. employees, made attempts to put M.C. in a compromising sexual position.
22C.K. testified that she was introduced to Alexander by Blake. At a second meeting, they told her that they wanted her to get together with an accountant (M.C.) and try to get some information from him. She inferred from what Alexander said that she was to sleep with the accountant, if necessary. Blake and Alexander told her that she would be paid $400.00. A C. employee installed a clock radio with a camera inside in a hotel bedroom. C.K. eventually took M.C. to that hotel room and they engaged in sexual activity.
23Some time after the meeting in which the sexual activity occurred, M.C. received a photograph in the mail of himself and C.K. engaged in sexual activity. The writing on the back of the photo said:
The next photo will be to your address and all your clients. Butter [sic] you pay Mr. H. Alexander his $10,000.00 and shut up.
24M.C. was subject to a second set-up involving a different woman that was much the same as the first. He later received a photograph in the mail of himself and that woman engaging in sexual activity.
25M.C. went to the police and their investigation led to the charges in the indictment.
(c) Count Fifteen
26Count fifteen charged Alexander with conspiring with Y.A. to extort P.M.. P.M., a lawyer, had acted for Alexander and his partners in a real estate transaction many years earlier. Alexander had a falling out with his partners and sued them. Later, Alexander became convinced that P.M. had failed to represent him adequately and that P.M. knew that Alexander’s partners had cheated him. About ten years after the transaction, Alexander complained about P.M. to the Law Society of Upper Canada. The Law Society took no action.
27Y.A. worked for an escort service. She wanted to get into the private investigation business and was referred to Alexander. He asked her to go see a lawyer, “M.”, and ask questions about offshore banking. Alexander told her to record the conversation.
28Y.A. had a meeting with P.M. and provided the tape to Alexander. Alexander was unhappy about the quality of the tape and asked her to see the lawyer again and on this occasion to have sex with him. Alexander promised her $1,400.00 if she would have sex with P.M. and tape it. Y.A. testified that she knew there was something wrong with this suggestion, so she went to the lawyer’s office and reported what she had been asked to do. She decided not to have any further contact with Alexander.
29P.M. testified and confirmed the first meeting with Y.A. He said that she also called him and attempted to arrange a second meeting at her apartment. P.M. testified that Y.A. phoned him a second time a short time later and said that her meeting with him had been orchestrated by Alexander and that Alexander had told her to have sex with him and to videotape that activity. P.M. went to his lawyer who arranged to obtain a statement from Y.A. Armed with the statement, P.M. and his lawyer went to the police.
30Alexander testified that he hired Y.A. on the advice of an Ottawa police officer. He wanted an attractive young woman with the ability to beguile male businessmen so that they would make admissions that would assist in C.’s investigations. He thought Y.A. might have that ability. Alexander insisted that he did not know that Y.A. worked for an escort service and that he never offered her money to have sex with P.M. or anyone else. Alexander relied on inconsistencies in Y.A.’s testimony and the statement she had given to the police. Most notably, in her statement, Y.A. had told the police that Alexander did not tell her to have sex with P.M.
31The trial judge accepted Y.A.’s evidence and rejected the evidence of Alexander.
(iii) The Extortion Charge (Count Twelve)
32Count twelve charged extortion in these terms:
Harry Alexander … without reasonable justification or excuse and with intent to obtain a sum of money, did attempt to induce M.M. by threats to send a letter containing an attack on M.M.’s character if an amount of money was not paid …
33M.M. had been employed at Alexander’s marketing company where P.G. (referred to in count three) was also employed. After P.G. had left that company, M.M. told Alexander that she had been sexually assaulted by P.G. Eventually, she sued P.G. She was unable to finance the litigation and borrowed some $7,000.00 from Alexander’s wife. In January 1997, M.M. settled her action against P.G. and received a monetary settlement. She did not tell Mrs. Alexander that the action had been settled. Mrs. Alexander found out about the settlement and she attempted to contact M.M. to discuss the status of the loan. When M.M. did not reply, Mrs. Alexander wrote to her demanding repayment and threatening a lawsuit. Mrs. Alexander discussed the problem with her husband. Both were angry that M.M. had not told Mrs. Alexander about the settlement or replied to her phone calls or letters.
34Mr. Alexander prepared a draft letter addressed to Michael Cowpland, M.M.’s employer in January 1997. Alexander knew Mr. Cowpland. The letter read in part:
I would like to make you aware of highly questionable ethical and moral conduct on behalf of one of your employees – [M.M.] There are too many good people looking for work in our present times without having such people of low character represent you, Corel and your products.
35Alexander testified that he initially intended to send this letter to Cowpland, but that his wife convinced him that he should not do so. Alexander then decided to send a copy of the letter to M.M. at her place of employment along with a note that read:
[M.] – Any advice, direction, or suggestions before this goes off? It will be couriered marked “Personal and Confidential” and he will read it.
36Alexander did not send the letter to Cowpland. When asked why he sent a draft of the letter to M.M. with the note attached, Alexander testified.
… I was angry, no ifs, ands or buts. I wanted to shake her up and have her respond to my wife’s telephone calls and faxes.
(iv) Possession of “Bugging” Equipment (Count Eleven)
37Count eleven charged Alexander with possession of electromagnetic devices in the form of audio video cameras concealed in clock radios knowing that the design rendered them primarily useful for the surreptitious interception of private communications.
38Alexander’s possession of the clock radios containing the video cameras was not challenged. He purchased the devices for use by C. employees in the course of their investigations. The clocks were used on several occasions in efforts to videotape and record persons having sexual contact with the operatives hired by C..
39Alexander testified that he purchased the clock radios equipped with audio/video cameras in the normal course of C.’s business and that these devices were readily available on the market. He also indicated he had obtained legal advice as to what he could or could not do in terms of intercepting private communications.
III
The Grounds of Appeal
(i) The Unreasonable Delay Argument
40Prior to trial, both appellants argued that their right to trial within a reasonable time guaranteed by s. 11(b) of the Charter had been infringed and that the proceedings should be stayed against them. In careful reasons, the trial judge fully analyzed the unreasonable delay claim and rejected the appellants’ contention. The appellants renew the argument on appeal.
41I see no need to repeat the unreasonable delay analysis carefully undertaken by the trial judge. I agree with his conclusion. This case took too long to get to trial (46 months). The appellants’ complaints focused on the 31 months it took to move the proceedings through the committal for trial stage. Most of the delay related to disclosure problems and disputes. Some of that delay was clearly attributable to the Crown’s failure to make timely disclosure of material that on any reasonable view was subject to the Crown’s disclosure obligation. However, there was also considerable delay in resolving disclosure disputes over material that the Crown quite legitimately declined to produce without a judge’s order. As observed by the trial judge, the appellants took some time to bring disclosure disputes to a head after the Crown had unequivocally set forward its position in respect of the disclosure of certain sensitive material generated in another investigation that the defence sought produced in this case.
42The trial judge did not attribute any part of the time needed to resolve the disclosure disputes to the defence. He did, however, use what he described as “defence inaction” in pursuing its disclosure remedies when measuring the prejudice, if any, to the appellants flowing from the delay and when determining what part of the delay should count against the Crown in the s. 11(b) analysis. I see no error in the trial judge’s approach, or in his characterization of the facts presented to him.
(ii) The Appeals from the Conspiracy Convictions
43The appellants’ submissions on the conspiracy convictions come down to the claim that the Crown failed to produce evidence from which it could be reasonably inferred that either Alexander or Blake agreed with any of the alleged co-conspirators to commit the particular extortions alleged in the conspiracy counts.
44Blake submits that although there was evidence that he assisted Alexander in enlisting, paying and de-briefing the operatives, there was no evidence that Blake knew, much less agreed to, the plan to use surreptitiously taken videotapes of sexual encounters between the operatives and the targets to extort money from the targets.
45Alexander submits that while the evidence may demonstrate that he had a plan to surreptitiously record individuals engaged in sexual activity and to use the product of those activities to recover money from the targets, there was no evidence that Blake or Sabourin (count three) or Y.A. (count fifteen) had any knowledge of Alexander’s plan, much less had agreed to it with him. Alexander submits that he cannot be convicted of conspiracy absent proof that he agreed with at least one of the alleged co-conspirators to commit the crime alleged in the particular count in the indictment.
46The appellants’ submissions stand on firm legal footing. The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal: G. Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961) at 667-68; R. v. Cotroni (1979), 45 C.C.C. (2d) 1 at 17-18, 23-24 (S.C.C.); U.S.A. v. Dynar (1997), 115 C.C.C. (3d) 481 at 511-12 (S.C.C.); R. v. McNamara (1981), 56 C.C.C. (2d) 193 at 452-55 (Ont. C.A.), aff’d without reference to this point (1985), 19 C.C.C. (3d) 1 (S.C.C.); P. MacKinnon, “Developments in the Law of Criminal Conspiracy” (1981), 59 Can. Bar Rev. 301 at 308; M.R. Goode, Criminal Conspiracy in Canada (Toronto: Carswell Toronto, 1975) at 6-18.
47It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy: see R. v. Lamontagne (1999), 142 C.C.C. (3d) 561 at 575-76 (Que. C.A.); R. v. Cotroni, supra, at pp. 17-8. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.
48The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a preemptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime: see I.H. Dennis, “The Rationale of Criminal Conspiracy” (1977), 93 Law Q. Rev. 39; P. Gillies, The Law of Criminal Conspiracy (Sydney, Australia: Law Book Co. Ltd., 1981) at 327.
49I turn next to the trial judge’s reasons on each of the conspiracy convictions.
(a) Count Fifteen
50This count alleged a conspiracy between Alexander and the operative Y.A. The trial judge found that Y.A. agreed with Alexander to meet P.M., the target, for a second time to videotape a sexual encounter with him. He said:
There was an agreement between [Y.A.] and Alexander that she would attempt to have sex with [P.M.] and that it would be taped.
51Although Y.A. denied that she ever agreed to attempt to have sex with P.M., it was open to the trial judge to make the finding he did based on P.M.’s evidence. The agreement described by the trial judge does not, however, constitute the agreement to commit extortion alleged in count fifteen.
52The trial judge went on to hold:
The only possible use that could be made of it [the videotape of the sexual activity] would be to pressure [P.M.] into telling Alexander where Kemper and Morphy [Alexander’s former partners] were hiding their assets.
53Once again, this finding was open to the trial judge as it applied to Alexander. The trial judge failed, however, to separately consider whether Y.A. had agreed with Alexander to extort P.M. so that he would reveal the location of the assets. There is no evidence that Y.A. had any knowledge of the prior relationship between Alexander and P.M. or any knowledge of Alexander’s belief that P.M. knew where certain assets could be located. Furthermore, there is no evidence that she had any knowledge of the ongoing dispute involving Alexander and his former partners. Absent that knowledge, it cannot be reasonably inferred that she agreed with Alexander to mutually achieve the criminal objective described by the trial judge.
54At most, it could be said that Y.A. knew that Alexander was up to no good and planned to use the videotapes for some nefarious purpose. That knowledge cannot be equated with a meeting of the minds pursuant to which each agreed to jointly work towards the criminal objective of extorting P.M.
55Y.A. was the only alleged co-conspirator in count fifteen. As it takes two to conspire, Alexander must be acquitted on count fifteen.
(b) Count Five
56Count five alleges a conspiracy among Blake and three unindicted co-conspirators, including Alexander, to extort the accountant, M.C. The trial judge found that it was Alexander’s intention to videotape M.C. in a compromising sexual situation and use the videotape to pressure him to pay Alexander the money that Alexander believed M.C. owed to him. In holding that Blake was a party to this plan and a co-conspirator with Alexander, the trial judge referred to the following:
- Blake introduced Alexander to the operative (C.K.) hired by Alexander to meet with M.C.;
- Blake and Alexander spoke with the operative about having sex with M.C.; and
- Blake advised the operative that she would be meeting with another C. employee who would pose as her husband as part of the ruse intended to get M.C. in a compromising sexual situation.
57The trial judge did not specifically identify the inferences that he drew from Blake’s conduct. That conduct cannot reasonably support the inference that Blake knew of Alexander’s plan and more importantly, that Blake and Alexander had agreed that the plan should go forward and M.C. be extorted in the manner described by the trial judge.
58Blake did not have any management function at C., nor any prior or ongoing business relationship with Alexander. Neither the nature of Blake’s employment at C., nor his relationship with Alexander could justify the inference that he and Alexander had agreed to act together in pursuit of Alexander’s plan to extort M.C. At the highest, the facts demonstrate that Blake, as Alexander’s employee, performed certain tasks that furthered Alexander’s plan to pressure M.C. into paying him money by threatening public disclosure of the contents of embarrassing videotapes. On the totality of the evidence, the acts done by Blake do not reasonably permit the inference that he conspired with Alexander to bring about the extortion of M.C.
59There is no basis in the evidence upon which to infer that Blake conspired with any of the other co-conspirators alleged in count five. Blake should be acquitted on count five.
(c) Count Three
60Count three alleged that Alexander and Blake conspired with the unindicted co-conspirator, Sabourin. The trial judge’s analysis of the evidence relating to count three is very similar to the analysis of the evidence relating to count five. The trial judge had no difficulty finding that Alexander had a plan to put his former friend and business associate, P.G., in a compromising sexual situation, videotape that situation and use the product to extort money from P.G.
61The trial judge also described Blake’s role in the facts underlying count three. Blake recruited the operative (S.T.), paid her and drove her home after her meeting with P.G.
62In determining whether a conspiracy existed between Alexander and Blake, the trial judge said:
The only possible use that could be made of a videotape of [P.G.] having sex with a call girl would be to put pressure on him to pay the money claimed in the lawsuit commenced by Alexander, failing which the tape would be revealed to people in a way that would be damaging to [P.G.]. I therefore find that the Crown has proved beyond a reasonable doubt that a conspiracy did exist.
63The trial judge did not deal separately with either Blake’s knowledge of the object of the conspiracy or his adherence to that object. With respect to the thorough reasons of the trial judge, I see no evidence to support a finding that Blake was aware of Alexander’s intended use of the videotapes or that Blake mutually agreed with Alexander to bring about that criminal objective. As in count five, all that can be said is that Blake, as a C. employee, did things which furthered Alexander’s criminal plan. That does not make Blake a conspirator.
64It is worth noting, as counsel for Blake pointed out in his factum, that the trial judge acquitted Blake on count one, also a charge of conspiracy to commit extortion. The trial judge found that Blake had agreed with Alexander to recruit women to act as operatives to engage in sexual activity with the male targets. The trial judge held that the agreement did not amount to a conspiracy to extort. I agree with counsel’s observations that there is little, if any, difference between the evidence against Blake on count one and the evidence against Blake on counts three and five.
65As there was no basis upon which it could reasonably be found that Blake was a participant in the conspiracy alleged in count three, he should have been acquitted on this count. The trial judge made no finding of a conspiracy between Alexander and Sabourin. As with count fifteen, the Crown’s failure to establish that Alexander conspired with any of the alleged co-conspirators means that Alexander should also have been acquitted on count three.1
(iii) The Appeal from the Extortion Conviction
66Counsel for Alexander acknowledged, correctly in my view, that based on the trial judge’s findings, the letter and attached note sent by Alexander to M.M. amounted to a threat made by Alexander to M.M. to have her fired from her job unless she paid Mrs. Alexander the money that she owed to her. Counsel contended, however, that Alexander’s actions could not in law constitute the crime of extortion. He submitted that a “legally permissible threat” to collect a “legitimately owed debt” could not constitute extortion.
67It is not entirely clear to me what counsel meant by the phrase “legally permissible threat”. In his factum, counsel used the phrase in a broad sense to mean a threat that was “perfectly legal and permissible”. In oral argument, however, counsel seemed to use the phrase in a narrower sense as meaning a threat that was not in and of itself unlawful.
68If counsel intended the broader meaning, his argument, even if valid in law, would fail on the facts of this case. Had Alexander carried out his threat to have M.M. fired, his actions would have constituted a tortious interference with M.M.’s contractual relationship with her employer: see L.N. Klar, Tort Law, 3rd ed. (Toronto: Thomson Canada, 2003) at 610-20; Payjack v. Spring Hill Farms, 2002 MBQB 98, [2002] 7 W.W.R. 354 at paras. 52-70 (Man. Q.B.). A threat to engage in tortious conduct cannot be described as a “perfectly legal and permissible” threat.
69I do not think, however, that the validity of this argument ultimately turns on whether Alexander’s threat was tortious or even unlawful. The real question, as identified by the trial judge, is whether the Crown proved that the threat was made “without reasonable justification or excuse”.
70The relevant part of s. 346(1) of the Criminal Code provides:
Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats … induces or attempts to induce any person, … to do anything …
71Section 346(1) is broadly worded to criminalize threats of any kind made in an attempt to induce any person to do anything, if those threats are made with the intention of obtaining anything. The section is aimed at those who would use coercion to overcome the free will of others for the purpose of extracting some gain: R. v. Davis (1999), 139 C.C.C. (3d) 193 at 210 (S.C.C.); B. Fisse, Howard’s Criminal Law, 5th ed. (Melbourne, Australia: Law Book Co. Ltd., 1990) at 267.
72The broad prohibition in s. 346(1) is tempered by the availability of the defence of “reasonable justification or excuse”.2 That defence and similarly-phrased defences appear in many of the offence-creating provisions of the Criminal Code (e.g., ss. 69, 254(5), 349, 351, 450, 452). A reasonable justification or excuse refers to some matter that is extraneous to the existence of the essential elements of the offence that justifies or excuses actions that would otherwise constitute the crime. An accused who relies on a “reasonable justification or excuse” admits that he committed the prohibited act with the requisite culpable mental state, but argues that the circumstances in which he did so justify or at least excuse what he did: R. v. Taraschuk (1975), 25 C.C.C. (2d) 108 at 110 (S.C.C.); R. v. Holmes (1988), 41 C.C.C. (3d) 497 at 520-21 (S.C.C.); R. v. Santeramo (1976), 32 C.C.C. (2d) 35 at 44 (Ont. C.A.); R. v. Moser (1992), 71 C.C.C. (3d) 165, per Doherty J.A. (concurring) at 178-79 (Ont. C.A.); J.C. Smith, Justification and Excuse in the Criminal Law (London: Stevens & Sons, 1989) at 47-50.
73It is impossible to list the circumstances that could give rise to a successful claim of reasonable justification or excuse to an extortion charge. The defence is both fact and offence specific: see E. Colvin, Principles of Criminal Law, 2nd ed. (Toronto: Carswell, 1991) at 199. For example, what may constitute a reasonable excuse for possession of counterfeit money would probably have no relevance to a claim of reasonable excuse in response to a charge of possession of house-breaking instruments.
74Two general statements can, however, be made. First, although I refer to the defence of “reasonable justification or excuse”, the ultimate burden of persuasion is on the Crown to demonstrate beyond a reasonable doubt the absence of any reasonable justification or excuse: R. v. Natarelli and Volpe, [1968] 1 C.C.C. 154 at 161 (S.C.C.). If on the totality of the evidence there is an air of reality to the claim of reasonable justification or excuse, the trier of fact must determine whether the Crown has negated that claim beyond a reasonable doubt. Second, the use of the qualifying word “reasonable” connotes a partially objective inquiry when an accused advances a reasonable justification or excuse defence. The ultimate question is not whether the particular accused believed his threats were reasonably justifiable or excusable, but whether a reasonable person in the accused’s position would have formed that view.3
75Natarelli, supra, is the leading authority on the meaning of the phrase “without reasonable justification or excuse” in s. 346. In that case, the accused threatened the victim and members of his family with death or bodily injury unless the victim paid money to the accused or gave certain shares to the accused. There was evidence that the money or shares demanded by the accused were legitimately owed to them, or that at least the accused believed that the money or shares were owed.
76A jury acquitted the accused. This court dismissed the Crown appeals, holding that a person who believed he was legally entitled to the thing demanded could not be convicted of extortion. The Supreme Court of Canada reversed. Cartwright J., for a unanimous court, rejected the contention that a genuine claim to the thing demanded precluded a conviction for extortion. He said at p. 160:
To constitute a defence, there must be reasonable justification or excuse not only for the demand but for the making of the threats or menaces by which the accused sought to compel compliance with the demand.
When it is proved that threats have been made for the making of which there could be no justification or excuse, that the threats were made with intent to gain something and were calculated to induce the person threatened to do something, the commission of the crime defined in s. 291 [now s. 346] is established, and it is unnecessary to inquire whether the person making the threats had a lawful right to the thing demanded or entertained an honest belief that he had such a right; that inquiry would be necessary only if the threats were such that there could be reasonable justification or excuse for making them [emphasis added].
77Cartwright J., at p. 161, emphasized that the Crown could establish culpability on a charge of extortion by proving beyond a reasonable doubt either that the demand was not reasonably justifiable or excusable, or that the threat used was not reasonably justifiable or excusable. Cartwright J. further observed that an intention to kill or cause grievous bodily harm could never be reasonably justified. Consequently, if the jury on the retrial was satisfied that the accused had made the threats alleged against them, they were guilty of extortion regardless of whether they were owed the money or shares demanded by them.
78It is true, as counsel for Alexander contends, that Natarelli is distinguishable from this case in that the threats allegedly used to collect the debt in that case were clearly unlawful. I cannot, however, find any support in Natarelli for equating all lawful threats with the reasonable justification or excuse defence. Natarelli does not suggest that the existence of a reasonable justification or excuse for a threat made to collect a lawful debt turns solely on the lawfulness of the conduct constituting the threat. To the contrary, Cartwright J. explicitly states at p. 161 that the entire course of the accused’s conduct, including both the threat and the demand, must be considered in deciding whether the Crown has proved that the threat used to collect a legitimate debt was made without reasonable justification or excuse. The very same threat could be reasonably justified when made in connection with one demand and in one set of circumstances, and not reasonably justified when made in other circumstances or in connection with a different demand.
79A distinction between threats used to collect legitimate debts that is based exclusively on whether the conduct constituting the threat is in and of itself unlawful would undermine the rationale for the crime of extortion. The potential for a threat to overwhelm a person’s free choice and compel that person to act in the manner dictated by the threat is not necessarily tied to the lawfulness of the conduct constituting the threat. Some threats, while not per se unlawful (e.g., the threat to disclose some despicable act from one’s distant past), will have a much more coercive effect than a threat to do something which is in and of itself unlawful (e.g., a threat to trespass on property).
80If Alexander’s interpretation of a reasonable justification or excuse defence is accepted, the extortion prohibition would be rendered ineffective in circumstances that have historically been regarded as typical examples of blackmail. For example, in R. v. McClure (1957), 118 C.C.C. 192 (Man. C.A.), the accused threatened to sell a story to the newspaper providing the details of the victim’s recent criminal conviction on a charge of disorderly conduct unless the victim paid the accused $200.00. Publication of the details surrounding the conviction had the potential to seriously harm the victim’s standing in the community and his employment. Applying the appellant’s analysis, the offence of extortion would not be made out because the accused was legally entitled to sell the story to the newspaper and a demand for payment in lieu of publication is not per se unlawful. However, the threat and the demand taken together constitute powerful intimidation calculated to overcome the free choice of even the strongest person.
81The Manitoba Court of Appeal, in upholding the accused’s conviction on extortion, approved the following jury instruction relating to “reasonable justification and excuse” at p. 198:
… The question is simply whether on all the facts the accused had some reason for his demand of money. Supposing it was not unreasonable to threaten to publish something, was it reasonable to demand money as the price for his refraining to do so? That is a question for you [the jury] to determine, whether he had any reasonable justification for demanding this money.4
82A review of the statutory provisions governing blackmail in England, Australia and New Zealand lends support to the Crown’s contention that demands can be unjustified even if not per se unlawful and even if made to collect a legitimate debt. While the provisions in the other jurisdictions are worded differently from s. 346(1) and offer little assistance in interpreting s. 346(1), they all appear to contemplate convictions where an accused who is owed a debt uses threats that, while not necessarily unlawful, are regarded as “improper” or “unwarranted” in an effort to collect the debt.5
83I think the phrase “reasonable justification or excuse”, used in the context of the crime of extortion where the accused seeks to collect a debt, exists to distinguish between situations where individuals use what could reasonably be regarded as warranted or legitimate – albeit perhaps harsh – tactics to collect debts and situations where the means used to attempt to collect those debts goes beyond what could reasonably be regarded as warranted or legitimate. The “reasonable justification or excuse” defence seeks to draw the line, for criminal purposes, between hard bargaining and criminal blackmail. That line may be difficult to draw in any given case. Like any factual issue in a criminal trial, the dividing line between guilt and innocence will turn on the trier of fact’s assessment of the evidence and the application of the burden of proof to that assessment. In this regard, the defence of “reasonable justification or excuse” to an extortion charge is no more uncertain than other contextual defences that depend in part at least on an assessment of the reasonableness of the conduct of the accused in the circumstances measured against a necessarily general standard.
84When an accused charged with extortion has used threats in an attempt to collect a legitimate debt, the trier of fact must consider all of the circumstances, including the nature of the threat and the nature of the demand, to determine whether the Crown has proved beyond a reasonable doubt that there was no reasonable justification or excuse for the threat. In jury cases, trial judges will instruct juries that it is not every distasteful threat used to support a legitimate demand for repayment of a debt that will constitute extortion. The jury will be told that the threat must go beyond that which a reasonable person in the circumstances of the accused would view as a legitimate or warranted means of attempting to collect the debt.
85As is evident from my analysis to this point, the phrase “reasonable justification or excuse” in s. 346 requires a fact-specific inquiry. In some circumstances, a trier of fact may find that a threat to contact a debtor’s employer was a reasonable means of seeking to collect a debt. For example, if the debt was somehow connected to the employment and if the purpose for involving the employer was to obtain repayment of the debt from the employer, a trier of fact could well have a reasonable doubt as to whether an accused’s threat to go to the employer was made without reasonable justification or excuse.
86Although the defence of reasonable justification or excuse is fact-driven, it is not entirely free from judicial control. As with any defence, there must be an air of reality to the reasonable justification or excuse claim. If the trial judge is satisfied that no reasonable person in the circumstances of the accused would have viewed the threat made as a legitimate or warranted means of attempting to collect the debt, the trial judge will instruct the jury that the threat cannot, as a matter of law, be excused or justified: see R. v. Natarelli, supra. There may also be circumstances when a trial judge will instruct a jury that as a matter of law, a given threat is reasonably justified or excused. For example, if an accused claims that his or her actions said to constitute the threat were a statutorily-authorized means of collecting a debt, the defence of reasonable justification or excuse would prevail unless the Crown proved beyond a reasonable doubt that the conduct said to constitute the threat was not authorized by the statute.
87In the vast majority of cases, however, the ultimate applicability of the defence of “reasonable justification or excuse” will depend on the findings of fact made and the trier of fact’s assessment of whether the conduct said to constitute a threat was reasonable in all of the circumstances.
88Throughout my analysis of the “reasonable justification or excuse” defence, I have treated the phrase as creating one rather than two discrete defences. I recognize the distinction between justifications and excuses as applied to criminal law defences. I see no purpose, however, in drawing that distinction when addressing the “reasonable justification or excuse” defence in s. 346. In my view, the approach outlined above properly draws the distinction between threats used to collect legitimate debts that do attract criminal liability under the extortion provision and those that do not. I note that counsel did not suggest the need to draw any distinction between reasonable justifications and reasonable excuses for the purposes of the extortion provision.
89In the case at bar, it is acknowledged that M.M. owed Mrs. Alexander money. Alexander’s demand for repayment of that money was clearly reasonable. As Natarelli, supra, instructs, however, a legitimate demand does not alone provide a reasonable justification or excuse. The question remained whether there was any basis upon which to conclude that Alexander had a reasonable justification or excuse for threatening to have M.M. fired if she did not repay the legitimate debt.
90The trial judge, after observing that Alexander relied on the defence of reasonable justification or excuse, said:
It is one thing to demand payment of a loan. It is quite another thing to threaten the continuance of a person’s employment by reason of her failure to keep an agreement to repay a loan.
91As this was a trial by judge alone, it was for the trial judge to decide on the totality of the evidence whether the Crown had negated Alexander’s claim of justification or excuse beyond a reasonable doubt. I read the above-quoted passage as an implicit finding in favour of the Crown on this issue.
92A threat to have someone fired can be a powerfully coercive one, especially where the threat is made by someone like Alexander, who has apparent connections to the victim’s employer. Employment is a mainstay of most people’s lives. Consequently, any threat to that employment can strike at the very heart of that individual’s autonomy and free will. Like the trial judge, I see no basis for a reasonable justification or excuse claim by Alexander. The fact that M.M. owed Alexander’s wife a debt that was completely unconnected to M.M.’s employment did not provide a reasonable justification for an attempt to compel repayment by threatening to have M.M.’s employment terminated. That threat went beyond what any reasonable person in Alexander’s circumstances could view as a justified means of attempting to obtain repayment of the money owed to Mrs. Alexander.
93I would not interfere with the conviction on count twelve.
(iv) The Appeal from the Conviction on the Possession of “Bugging” Equipment
94Count eleven charged Alexander with an offence under s. 191(1) of the Criminal Code. The relevant parts of that provision provide:
Everyone who possesses … any electromagnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence …
95Count eleven particularized the device as “audio video cameras concealed in clock radios”. Counsel for Alexander argued that these devices were not “primarily useful for surreptitious interception of private communications” because they were designed for both the surreptitious recording of private communications and the surreptitious taking of photographs or videos. Counsel observed that as the law presently stands, there is no criminal prohibition against the possession of devices primarily used for the surreptitious taking of photographs or videos.6
96Counsel’s argument places an unduly restrictive interpretation on the word “primarily” in s. 191 and ignores how the devices in question worked. These devices were designed to surreptitiously intercept private communications and at the same time surreptitiously videotape those involved in the private communications. It cannot be said that the primary purpose of the devices was either to intercept private communications or to videotape. The primary purpose was to do both at the same time.
97The criminal prohibition in s. 191 attaches as long as the primary, if not the exclusive, purpose of the device is to surreptitiously intercept private communications. It would be an odd result if it were a defence under s. 191 that a device had the ability not only to intrude upon private communications, but at the same time to surreptitiously invade other facets of individual privacy.
98I would dismiss the appeal from the conviction on this count.
(v) Alexander’s Sentence Appeal
99Alexander received sentences totalling thirty months. He received a sentence of ten months on the extortion charge, two consecutive ten month sentences on each of the conspiracy convictions and a sentence of six months concurrent on the possession of “bugging” equipment charge. As I would quash the conspiracy convictions against Alexander and enter acquittals, I think it is appropriate to consider the appropriateness of the sentence imposed on the extortion conviction without the usual deference accorded to sentences imposed at trial.
100In sentencing Alexander on the conspiracy counts, the trial judge took a very dim view of his behaviour. Although I would quash those convictions for the reasons detailed above, the trial judge’s observations remain valid and relevant to the determination of a fit sentence on the extortion charge. Alexander’s willingness to extort M.M. to recover the debt owed to his wife was not an isolated incident. As the evidence demonstrates, it was typical of Alexander’s conduct. Alexander’s conduct through the facilities of C. made a strong case for the need to specifically deter Alexander from further criminal actions if those actions might somehow advance Alexander’s personal agenda. Alexander appears to regard any conduct, no matter how despicable, as justified if in the end it helps him get whatever it is that he believes he is entitled to have. I also agree with the trial judge’s description of the specific extortion of M.M. as “cold and calculated”.
101The trial judge recognized that Alexander was a first offender and that there were many positive features in his background. It is also relevant that the threatening letter was never actually sent to the employer. Like the trial judge, however, I am satisfied that a period of incarceration was necessary on the extortion charge. While I would be inclined to impose a sentence of something less than ten months, I note that the trial judge imposed a concurrent sentence on the possession of “bugging” equipment charge. I would have imposed a short, sharp consecutive sentence on that charge. Consequently, I am satisfied that a total sentence of ten months is an appropriate sentence in respect of the convictions that remain outstanding against Alexander. I would dismiss the sentence appeal.
IV
Conclusion
102I would allow Blake’s appeal, quash his conspiracy convictions (counts three and five) and enter acquittals. I would allow Alexander’s appeals on the conspiracy convictions (counts three and fifteen), quash those convictions and enter acquittals. I would dismiss Alexander’s appeals from the convictions on counts eleven and twelve. I would dismiss his sentence appeal from the sentences totalling ten months imposed on counts eleven and twelve.
RELEASED:”DD” “SEP 14 2005”
“Doherty J.A.”
“I agree K. Feldman J.A.”
I agree H.S. LaForme J.A.”
* At trial, the court at the Crown’s request made an order under s. 486(3) of the Criminal Code prohibiting the publication, broadcast or other disclosure of information that might disclose the names or identities of any civilian witnesses and named complainants who testified at the trial. That order was not challenged on appeal and it remains in effect until otherwise ordered.
21(1) A person is guilty of blackmail, if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief –
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.
Section 87 of the Crimes Act 1958 of Victoria, Australia is worded identically to s. 21 of the Theft Act 1968. Section 237 of the New Zealand Crimes Act 1961, as amended, states:
237 (1) Every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause damage to property or endanger the safety of any person with intent –
(a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and
(b) to obtain any benefit or to cause loss to any other person.
(2) Every one who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose.
Footnotes
- My analysis of the conspiracy allegations does not address possible culpability as an aider or abetter of a conspiracy entered into by others. That was not the Crown’s theory in this case: see R. v. Vucetic (1998), 129 C.C.C. (3d) 178 (Ont. C.A.).
- The prohibition is also tempered by s. 346(2), which provides that a threat to institute civil proceedings is not a threat for the purposes of s. 346.
- There does not appear to be any authority directly on point. However, the New Zealand blackmail provision, which requires that the threat be a “reasonable and proper means for effecting his or her purpose” has been interpreted as requiring an objective assessment of the propriety of the threat: see L. Atkins et al., Adams on Criminal Law (Wellington, New Zealand: Brooker’s, 1992) at C.A. 237.13. The comparable English provision does not use the word “reasonably” and arguably imports a purely subjective defence: see J.C. Smith and B. Hogan, Criminal Law, 10th ed. (London: Butterworths, 2002) at 628-29; R. v. Harvey (1980), 72 Cr. App. R. 139 at 141-42 (C.A.). Generally, as to the reasonableness component of contextual defences, see Colvin, supra, at pp. 202-3.
- The demand made by the accused in McClure was in fact unlawful in that, as a member of the police force, he was under an obligation of confidentiality with respect to the information he threatened to disclose; however, this fact played no part in the court’s holding that the conviction was proper.
- Section 21 of the Theft Act 1968 (U.K.) provides:
- Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, which received Royal Assent on July 21, 2005 (to come into force on a date to be determined), creates the offence of voyeurism. This offence would capture the surreptitious video recording of P.G. and M.C. in the hotel rooms.
